Scotland’s Domestic Abuse and Forced Marriage Helpline (24 hours): 0800 027 1234 or email@example.com
Largely due to the efforts of feminist campaigners, over the last few decades the scale of domestic abuse has become increasingly visible, and there have been major strides in terms of legal recognition and responses. During this time of state-sanctioned Covid-19 lockdown and social distancing, however, there is a considerable risk that domestic abuse will become more hidden, and that legal progress will stall. In this two-part blog post, we make some preliminary observations about the potential impact of the Covid-19 pandemic and social distancing policy on Scottish criminal justice responses to domestic abuse. Drawing on recent legal developments, including the Domestic Abuse (Scotland) Act 2018, we examine a spectrum of issues from reporting, to investigation and evidence gathering (Part One) through to the impact of trial delays and children’s increased presence in the home (Part Two). We also touch upon how the civil protections available to those who experience domestic abuse may be affected by the current pandemic and the changes introduced in response.
Although this post focuses on Scots law, many of the observations contained herein are likely to be relevant to other jurisdictions which are currently experiencing the ‘shadow pandemic’ of domestic abuse. While lockdown and social distancing measures are not ‘causing’ domestic abuse (as Scottish Women’s Aid have emphasised, this language risks deflecting blame from the perpetrator) there is worldwide concern that the confinement of individuals in their homes during this period of high tension and considerable economic uncertainty is exacerbating abusive behaviours and giving rise to more opportunities for surveillance, isolation, micromanagement and control. The potential effect of abuse on victims (including children in the home) may also be more pronounced at this time for a number of reasons: there will be far fewer periods of reprieve when the perpetrator or victim/s are at work, university or school; it may be more difficult to access medical care or support; and there will be fewer opportunities to escape. In addition, there may be further barriers to seeking support or police assistance in the first place.
Reporting and seeking initial assistance
Like sexual offences, domestic abuse is notoriously under-reported. One of many reasons for this is that victims, through no fault of their own, do not recognise their partner’s behaviour as abusive and criminal. At this time of increased risk, it is especially important that women (in 2018/19, over 83% of recorded domestic abuse incidents in Scotland had a female complainer and a male accused) are aware of what counts as domestic abuse and of the support that is available to them. Since April 2019, when the Domestic Abuse (Scotland) Act 2018 came into force, domestic abuse has been a distinct offence under Scots law. This new offence, contained in section 1 of the 2018 Act, draws on Evan Stark’s concept of coercive control and seeks to capture ongoing physical and psychological abuse which operates cumulatively to instil fear and restrict freedom. Providing that the specific conditions set out in the legislation are met, a perpetrator can be prosecuted for behaviour that was already criminal under Scots law (e.g. assault, stalking, threatening and abusive behaviour or sexual offences) and/or behaviour that was not previously criminal (e.g. micromanaging and controlling activities, behaviour or finances; isolating the victim from friends or family; emotional or verbal abuse, including making unreasonable demands). In line with other law and policy in Scotland, the offence applies exclusively to partners and ex-partners, whether they live together or not. Thus, while other forms of family abuse (such as adolescent to parent abuse) are also likely to increase in severity during periods of lockdown and social isolation, this would not be captured by the Scottish offence of domestic abuse. Instead, it would need to be prosecuted as an alternative offence e.g. assault or threatening and abusive behaviour. Incidents of domestic abuse against partners or ex-partners can also still be prosecuted in this manner if the Crown Office and Procurator Fiscal Service (COPFS) take the view that the behaviour does not meet the conditions in the 2018 Act. Since the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 came into force, isolated incidents can be prosecuted with a statutory aggravation which requires the court to, inter alia, record the aggravation upon conviction and take the aggravation into account when determining the appropriate sentence. Both the discrete offence and this aggravator symbolise state recognition that domestic abuse is distinctly harmful and that the days of turning a blind eye to ‘private’ abuse are well and truly over.
Social isolation is a breeding ground for the worsening of the behaviour described in the paragraphs above. This is illustrated by the horrifying fact that domestic abuse killings appeared to double in the first three weeks of lockdown: from an average of two women per week to an average of five. In recognition of the increased risk, and in light of evidence of escalating domestic abuse in countries where lockdown began earlier than in the UK, the Scottish Government announced on March 31st that it was to provide more than £1.5 million in extra funding to Scottish Women’s Aid and Rape Crisis Scotland. The provision of extra funding to both of these organisations reflects the reality that sexual violence is a common feature of domestic abuse and, contrary to common perception, often occurs between individuals who are in a relationship with one another. The UK Government has also announced an additional £2 million in funding for domestic abuse services and launched the #youarenotalone campaign.
Funding to help ensure access to support services is essential as there are likely to be particular challenges with accessing support and emergency assistance during periods of lockdown and social isolation. Indeed, while many jurisdictions have reported a surge in calls to domestic abuse helplines, initial figures in Scotland indicated a fall in the volume of calls which, it has been speculated, may be due to a reluctance or inability to call when the abuser or children are at home. In addition to victims not being able to safely access support services or call for emergency assistance due to being under increased surveillance, the police and support services will be under greater strain. General uncertainty about what the investigation and future court proceedings will entail may also have a negative impact on reporting, as might the presence of children in the home.
There are several systems in place to address the challenges with accessing initial support. The Silent Solution, for example, enables those who are in dangerous situations and unable to speak on a 999 call (made from a mobile phone) to press 55 when prompted and be transferred to the Police. In addition to phone support, various victim support agencies, including Scotland’s Domestic Abuse and Forced Marriage Helpline, offer assistance via web chat and e-mail, and there have been recent indications on social media that these services will be expanded. It is essential that these methods of seeking support and assistance are widely publicised as part of the recently re-launched national domestic abuse campaign in Scotland.
Police response and corroboration
A joint statement between Scotland’s Lord Advocate James Wolffe QC and the Chief Constable of Police Scotland, Chief Constable Iain Livingstone QPM, was released on 19th March 2020. This statement stresses a continued commitment to maintaining public safety and the effective investigation and prosecution of crime during the Covid-19 pandemic. Police Scotland have also indicated on social media that their approach to tackling domestic abuse is ‘business as usual’, which in ‘ordinary’ times entails responding to a domestic abuse call every 9 minutes and spending 20% of operational time dealing with domestic abuse issues. Although it is too early to say exactly how these figures will be affected by Covid-19 measures, new pressures on police time and changes to the pattern and scale of reporting of domestic abuse are bound to have some effect. Social distancing and lockdown measures may also have evidential consequences.
In order to legally count as ‘domestic abuse’, abusive behaviour does not have to occur in the domestic setting: under Scots law it is the relationship between the parties rather than the location of the abuse that matters. That said, the vast majority of domestic abuse does occur in the domestic setting (figures from 2018-19 revealed that 88% of domestic abuse incidents reported to the police took place in a home or dwelling with 38% in the victim’s home) and is even more likely to occur in the domestic setting (and likely the victim’s home) during periods of lockdown or social isolation. This may be significant from an evidential perspective, especially in Scotland where there is a formal legal requirement of corroboration, requiring that each essential fact in a case is supported by two independent pieces of evidence. Securing corroboration in domestic abuse cases is challenging at the best of times and the current situation may impact upon the nature and availability of corroborative evidence in several ways. For example, while eyewitness evidence is less likely to exist overall, children (or other relatives who live in the home) may be more likely to hear or witness the abuse and be relied upon as witnesses. As discussed in Part Two of this post, this gives rise to a host of concerns. Depending on the living arrangements (e.g. detached country house versus tenement block), evidence from neighbours may also become more important as they will be more likely to overhear altercations and to be at home to give witness statements when the police conduct local investigations. While it is possible that neighbours may be more reluctant than normal to engage with the Police on a face-to-face basis, social distancing and/or personal protective equipment (PPE) should alleviate concerns about transmission of the virus. It is also our understanding that, in practice, officers sometimes resort to obtaining statements over the phone from witnesses – it is possible that this method of obtaining statements will become more common during the pandemic period.
There are other potential ways in which the availability of evidence may be affected. For example, as many GP surgeries are now only offering phone or virtual appointments, there may be a reduced likelihood of GPs picking up on signs of abuse, particularly if the victim does not have access to a device with a camera or internet connection, or if the presence of the perpetrator (or children) in the home prevents honest and confidential communication between the GP and patient. All of this which may have a knock-on effect on the usefulness of medical records as evidence. Recognising that current measures will result in fewer interactions and ‘channels of escape’ for those experiencing domestic abuse, the Victims’ Commissioner in England and Wales, Dame Vera Baird, has suggested that supermarket workers should be trained to recognise code words from victims.
Prior to the Covid-19 pandemic there was already ambiguity surrounding the relationship between the corroboration requirement and the distinct offence of domestic abuse. During the passage of the Domestic Abuse (Scotland) Bill through the Scottish Parliament, for example, COPFS acknowledged that there may be inherent challenges with securing corroborative evidence in relation to psychological abuse and some controlling and coercive behaviours as ‘[t]he very nature of this type of abuse in many cases limits the potential sources of evidence available e.g. lack of direct witnesses, CCTV, or forensic evidence.’ To allay concerns, however, COPFS emphasised that friends and family, even if they have not directly witnessed the abuse, may be able to comment on the ‘relevant effects’ (which are set out in section 2 (3) of the 2018 Act) that abuse had on the victim. Reduced social interaction during lockdown and periods of social isolation, including with friends and family, may mean that this type of evidence is more difficult to come by (although, as ever, electronic communication and phone records may be of evidential value).
Another issue surrounding corroboration and the 2018 Act relates to how the doctrine of mutual corroboration (the Moorov doctrine) will apply between incidents that vary in perceived seriousness (the legislation requires the prosecution to prove a ‘course of behaviour’ and this can comprise a wide range of behaviour, from uttering threats to rape). The difficulties with establishing corroboration are likely to be compounded by any changes to the type of corroborative evidence that is available and, consequently, any cases reported during this exceptional time may not be accurate predictors of the approach and decisions that will be taken in future cases. At the same time, however, it is important to stress that domestic abuse is an ongoing pattern of behaviour that can last many years. Cases that result from longstanding abuse are perhaps, therefore, less likely to be affected by temporary changes to the type of evidence available. It is also worth noting briefly that there have been several key decisions in recent years that are likely to assist with bringing domestic abuse prosecutions, including during the pandemic period. Following the 2019 case of HM Advocate v Taylor, for example, it is clear that the doctrine of mutual corroboration can be used in order to establish an alleged course of abusive behaviour against a single complainer, providing that at least one of the incidents is supported by relevant evidence from more than one source. The 2016 case of Lees v HM Advocate, a domestic abuse case which confirmed that hearsay evidence (in this case a taped 999 call and a police statement from a deceased complainer) could mutually corroborate the evidence of another complainer, may prove particularly helpful during the pandemic period as emergency changes to the statutory regime governing the admission of hearsay mean that hearsay evidence is likely to grow in volume and significance. The Coronavirus (Scotland) Act 2020 ‘broadens the scope of cases in which an application to admit hearsay evidence may be made’ in recognition of the fact that witnesses may not be able to attend court due to Covid-19. This may have particularly noteworthy consequences in domestic abuse cases, which have traditionally been blighted by exclusionary rules against the admission of hearsay.
Ensuring immediate safety: Civil protection measures
For many victims of domestic abuse, their immediate priority is ensuring safety for themselves and their children, either through leaving the home themselves or having the perpetrator excluded. With respect to the former, the UK Home Secretary recently made it clear that the restrictions on leaving the home do not apply to those experiencing domestic abuse. Although this announcement did not cover Scotland, the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 provide that a reasonable excuse for leaving the home includes ‘to avoid injury, illness or to escape a risk of harm’ (Regulation 8(5)(m)). Recent guidance issued to Police officers in England also makes it clear that those who have had an argument with family members are allowed to stay with a friend for a ‘cooling off’ period. Although at the time of writing the guidance on the Police Scotland website does not specify whether this is permitted in Scotland or not, it is likely that a similar approach would be taken.
Despite Scotland having robust statutory protection in place for those fleeing abuse in the home (under the Homelessness (Scotland) Act 2003 those experiencing domestic abuse have a statutory right to housing), domestic abuse is still the leading cause of homelessness for women in Scotland. However, likely due to increased demand and the additional pressure councils are under, there is currently concern relating to the availability of suitable accommodation for all individuals seeking to escape abuse. Shelter Scotland have indicated that they have called on the Scottish Government for special powers to be given to local councils to allow them to use holiday lets (e.g. AirBnB) and compulsory letting orders. The provision of hotels to victims of domestic abuse – as is occurring in France where the Government have funded 20,000 hotel nights – would likely be regarded as a last resort in Scotland due to the statutory right to housing.
The Matrimonial Homes (Family Protection) (Scotland) Act 1981 also offers statutory civil protection to spouses and cohabitants experiencing domestic abuse (the Civil Partnership Act 2004 contains equivalent provisions for civil partners). Under section 4 of the 1981 Act, a victim of domestic abuse (even if they do not have title to the property) can seek to have their abusive spouse excluded from the home, with a court required to make an exclusion order where satisfied that the order is ‘necessary for the protection of the applicant or any child of the family from any conduct or threatened or reasonably apprehended conduct of the non-applicant spouse, which is or would be injurious to the physical or mental health of the applicant or child.’ However, a court is not permitted to make an exclusion order if it would be ‘unjustified or unreasonable’ to do so having regard to all of the circumstances of the case. At the present time, the circumstances of the case could feasibly include (depending on the approach taken by the court) reducing the risk of virus transmission and difficulties with securing alternative accommodation, but also the increased risk to the applicant and any children in the home. The caveat to this, of course, is that the test in section 4 of the 1981 Act can only be applied if the civil courts still process applications for exclusion orders. At present, the civil courts in Scotland are only dealing with ‘urgent and necessary’ business and the list of court priorities does not explicitly include exclusion orders (although any application ‘determined by the court to be urgent’ can be processed). The curtailment of access to civil justice during the pandemic period is of significant concern, not just in the context of domestic abuse but across the board.
Other civil protection measures available to those experiencing domestic abuse include interdicts, interim interdicts and non-harassment orders (NHOs), which can include conditions such as refraining from contacting the applicant and staying away from the applicant’s home or place of work for a specified period. Interdicts prohibiting the non-applicant spouse from entering the home commonly accompany exclusion orders and can have powers of arrest attached. Both interim interdicts and NHOs are currently listed as ‘urgent and necessary’ civil business for sheriff courts. The breach of certain civil domestic abuse orders can also give rise to criminal law consequences. For example, under the Protection from Harassment Act 1997 it is a criminal offence to breach a NHO and, since the Domestic Abuse (Scotland) Act 2011 came into force, it is a criminal offence to breach a ‘domestic abuse’ interdict (which includes interim interdicts) with a power of arrest attached. Where an alleged perpetrator has been charged with a criminal offence following a police response to a domestic abuse incident, they can be released on an undertaking prior to a bail hearing, which may include the condition that they do not approach the complainer or their home. During periods of lockdown, breaching any conditions set out in an undertaking, NHO or interdict would also entail breaching government regulations and potentially put the complainer and any children at additional risk of contracting Covid-19. There is therefore an argument for treating breaches of civil orders or undertakings as especially serious at the present time.
Last year, the Scottish Government ran a consultation on the effectiveness of protective orders for those experiencing domestic abuse, and in October 2019 committed to the introduction of emergency barring orders (EBOs) via new legislation. In contrast to existing civil protection measures, which those who experience domestic abuse have to apply for themselves (and pay for if they are ineligible for civil legal aid), EBOs can be applied for by the police and provide an immediate and short-term remedy in cases of domestic abuse. It is inevitable that current circumstances (including the rise in domestic abuse) will lead to significant delays, not only in accessing legal aid but in the granting of civil protection measures, and it is therefore regrettable that EBOs are not already in place. The impact of court delays on criminal cases will be considered in-depth in Part Two of this post, which also addresses the impact of domestic abuse upon children.
*The authors are very grateful to colleagues who reviewed this blog post for their comments. Any errors remain our own.
 Statement by P Mlambo-Nguka, Executive Director of UN Women (6th April 2020). Available at: https://www.unwomen.org/en/news/stories/2020/4/statement-ed-phumzile-violence-against-women-during-pandemic
 We use the term ‘victim’ cautiously and recognise that some who experience domestic abuse may not identify as a ‘victim’ and prefer alternative terminology e.g. survivor or victim-survivor.
 Scottish Government, Domestic Abuse Statistics 2018-19, page 11. Available at: https://www.gov.scot/publications/domestic-abuse-scotland-2018-2019-statistics/, It is acknowledged that there may be gender differences in reporting rates that affect these figures.
 The first condition in the 2018 Act is that a reasonable person would consider A’s course of behaviour to be likely to cause B to suffer physical or psychological harm (s 1 (2)(a)) and the second is that A either intends that, or is reckless as to whether, the course of behaviour will cause B physical or psychological harm (s 1 (2)(b)).
 Defined in s 11 of the Domestic Abuse (Scotland) Act 2018.
 Assault is a common law crime in Scots law. Threatening and Abusive Behaviour is an offence under s 38 of the Criminal Justice and Licencing (Scotland) Act 2010.
 See s 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.
 Evidence of this is available in the following sources: https://www.theguardian.com/commentisfree/2020/apr/07/the-guardian-view-on-tackling-domestic-abuse-when-home-isnt-a-haven; https://www.unwomen.org/en/digital-library/multimedia/2020/4/infographic-covid19-violence-against-women-and-girls
 Scottish Government, Support for Victims of Domestic Violence during Covid-19 (31st March 2020). Available at: https://www.gov.scot/news/support-for-victims-of-domestic-violence-during-covid-19-outbreak/
 UK Government, Home Secretary Announces Support for Domestic Abuse Victims (11th April 2020). Available at: https://www.gov.uk/government/news/home-secretary-announces-support-for-domestic-abuse-victims
 See, for example: https://www.edinburghnews.scotsman.com/news/crime/domestic-abuse-and-coronavirus-what-legally-counts-domestic-abuse-scotland-helpline-sees-20-fall-calls-after-uk-lockdown-2531842
 Scottish Government, Supporting Domestic Abuse Victims (9th April 2020). Available at: https://www.gov.scot/news/supporting-domestic-abuse-victims/
 COPFS, Joint statement from Lord Advocate and Chief Constable (19th March 2020). Available at: https://www.copfs.gov.uk/media-site-news-from-copfs/1876-joint-statement-from-lord-advocate-and-chief-constable
 Comments by the National Lead for Domestic Abuse DSU Debbie Forrester on Twitter.
 Scottish Women’s Aid and COSLA, Good Practice in Commissioning Specialist Domestic Abuse Services. Available at: https://womensaid.scot/wp-content/uploads/2017/09/Good-Practice-in-Commissioning-Specialist-Domestic-Abuse-Services_SWA_COSLA.pdf
 Scottish Government, Domestic Abuse Statistics 2018-19, page 29. Available at: https://www.gov.scot/publications/domestic-abuse-scotland-2018-2019-statistics/,
 The Police Scotland website (https://www.scotland.police.uk/about-us/covid-19-policescotlandresponse/) states that Police officers are being provided with personal protective equipment (PPE) ‘as required based on a thorough risk assessment, when responding to incidents.’ According to the BBC (https://www.bbc.co.uk/news/uk-scotland-52319271), the Scottish Police Federation have expressed concerns about the level of protection offered by surgical face masks provided to officers.
 The Scottish Parliament, Research Briefing on the Domestic Abuse (Scotland) Bill (13th June 2017). Available at: https://digitalpublications.parliament.scot/ResearchBriefings/Report/2017/6/13/Domestic-Abuse--Scotland--Bill#Scotland
 Ilona Cairns is currently writing an academic article exploring these issues in depth.
 HM Advocate v Taylor  HCJAC 2.
 Lees v HM Advocate  HCJAC 16.
 Scottish Parliament, Explanatory Notes on the Coronavirus (Scotland) Bill, page 20. Available at: https://www.parliament.scot/S5_Bills/Coronavirus%20(Scotland)%20Bill/SPBill66ENS052020.pdf.
 Original proposals relating to hearsay attracted criticism. See comments from Eamon Keane in the Scottish Legal News on 1st April 2020: https://www.scottishlegal.com/article/eamon-keane-alarm-bells-ring-over-hearsay-proposals
 For discussion see C Bishop & V Bettinson, ‘Evidencing domestic violence, including behaviour that falls under the new offence of ‘controlling or coercive behaviour’ (2018) 22(1) The International Journal of Evidence and Proof 3, at pages 17-21.
 NPCC and College of Policing, What constitutes a reasonable excuse to leave the place where you live? Available at: https://www.college.police.uk/What-we-do/COVID-19/Documents/What-constitutes-a-reasonable-excuse.pdf
 Scottish Government, Domestic Abuse, Housing and Homelessness in Scotland: An Evidence Review (1st November 2010). Available at: https://www.gov.scot/publications/domestic-abuse-housing-homelessness-scotland-evidence-review/pages/3/
 Domestic Abuse: A Good Practice Guide for Landlords (August 2019). Available at: https://womensaid.scot/wp-content/uploads/2019/08/Domestic-abuse-guidance-for-social-landlords-FINAL.pdf
 See, for example: https://time.com/5812990/france-domestic-violence-hotel-coronavirus/
 The 1981 and 2004 Acts distinguish between ‘entitled’ spouses who are permitted to occupy the home (e.g. by virtue of ownership or tenancy) and ‘non-entitled’ spouses who are not.
 S 4 (2) of the 1981 Act.
 S 4 (3) of the 1981 Act. S 3 (3) of the Act provides a non-exhaustive list of factors that a court can take into account when considering all the circumstances of the case.
 Scottish Courts, Civil Court Priorities: Coronavirus Response. Available at: https://www.scotcourts.gov.uk/docs/default-source/default-document-library/urgent-civil-business---website-notice.pdf?sfvrsn=6
 Alison Edmondson, Who cares if the courts are shut? (9th April 2020). Available at: https://www.sko-family.co.uk/blog/who-cares-if-the-courts-are-shut/
 As per s 4 (4) of the 1981 Act, certain interdicts must be granted by the court when making an exclusion order if this is requested by the applicant spouse.
 A person who is applying for, or who has obtained, an interdict for the purpose of protection against abuse may apply to the court for a power of arrest to be attached to the interdict under s 1 (1) of the Protection from Abuse (Scotland) Act 2001.
 Scottish Courts, Civil Court Priorities: Coronavirus Response. Available at: https://www.scotcourts.gov.uk/docs/default-source/default-document-library/urgent-civil-business---website-notice.pdf?sfvrsn=6
 S 2 (7) of the Domestic Abuse (Scotland) Act 2011.
 Under s 3 (1) of the 2011 Act, a person who is applying for, or who has obtained, an interdict may apply to the court for a determination that the interdict is a domestic abuse interdict. The conditions that must be taken into account in making this determination are set out in s 3 (2). Interdicts include interim interdicts.
 Scottish Government, Protective Orders for People at Risk of Domestic Abuse: a consultation (21st December 2018) page 6. Available at: https://www.gov.scot/publications/consultation-protective-orders-people-risk-domestic-abuse/pages/2/
 Scottish Government, Protecting People from Domestic Abuse (15th October 2019). Available at: https://www.gov.scot/news/protecting-people-from-domestic-abuse/
For analysis, see the response of Scottish Women’s Aid to the Scottish Government’s consultation (March 2019). Available at: https://consult.gov.scot/justice/people-at-risk-of-domestic-abuse/consultation/published_select_respondent